by David Schultz

Aug 29, 2016, 1:00 PM

The Fifteen Dollar minimum wage

This is a cross post from the professor’s blog, Schultz’s Take. The case is set to be heard in the Minnesota Supreme Court tomorrow. After the story, I have a few observations. Steve

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The decision to place the $15 minimum wage on the ballot in Minneapolis is up to the State Supreme Court.  And it all comes down to what is considered to be a legitimate local municipal function under state law.  If it decides the issue correctly, the Court will reject old, wooden, out-dated conceptions of the law and conclude that a legitimate municipal function includes  promoting the public welfare of its citizens through establishing minimum wage laws.

In her decision ordering the “Vote for 15 MN” charter amendment to be placed on the ballot, Judge Robiner’s decision turned on an interpretation of Minnesota Statutes, § 410.07 which declares that permissible content for charter amendments extends to “ any scheme of municipal government not inconsistent with the constitution, and may provide for the establishment and administration of all departments of a city government, and for the regulation of all local municipal functions, as fully as the legislature might have done before home rule charters for cities were authorized by constitutional amendment in 1896.”  The City of Minneapolis did not argue that the Vote for 15 MN amendment was unconstitutional or pre-empted by state law, although that could be an issue central to the Supreme Court’s resolution of the issue.

But the core issue is whether charter amendments should be narrowly construed to address only the structure of government, such as size or powers of city council, or can it exgtend beyond that to address what looks like policy issues normally reserved for ordinances.  Thus, what is a legitimate local municipal function. Robiner resolved the dispute by resorting to a traditional canon of statutory interpretation in arguing that  § 410.07 should be read in a way to give effect to all the words and clauses in the law.  To read the breath of “all municipal functions” as merely repetitious of the content of what charter amendments may do when it comes to addressing “any scheme of municipal government” would fail to give effect to all the statute’s language.

This is good argument, yet her conclusion rendering “all municipal functions” as essentially allowing charter amendments to serve as initiatives or referenda is certain to be met with skepticism by the Supreme Court.  A better route would have been to argue that the reading the City of Minneapolis forces on “all municipal functions” is simply outdated.

Take us back to the nineteenth century.  At that time there were two legal principles that guided municipal law.  The first was Dillon’s Rule.  Dillon’s Rule came from court decision’s in Iowa and it declared that local governments only had narrowly defined powers that were either express or implied by state law.  Cities had no inherent powers of their own as they were legal creatures of the state.  These legal  propositions were also true in Minnesota.  However, Home Rule constitutional and statutory provisions, across the country and in Minnesota, have significantly changed if not eviscerated Dillon’s Rule.  Now in Minnesota and across the country home rule cities enjoy broad powers, in many cases that have acquired similar powers as acquired by state legislatures, unless otherwise preempted by state law.

A second major legal change involves what is considered a legitimate municipal function.  More than 100 years ago housing code or zoning ordinances were not considered legitimate municipal functions.  Providing for sanitation, fire protection, or other regulations to serve the public were on wobbly grounds as acceptable city functions in the nineteenth century.  The law made a distinction between cities acting in the governmental versus their proprietary functions.  Maintaining a police department was a city acting in its governmental capacity, running a golf course or a recreation center was not.

Yet nationally this governmental versus proprietary distinction has significantly eroded.  In part that has happened because of an overall expansion or recognition in terms of the scope of what  state governments may do.  States have what is called broad police power authority to regulate to protect the health, safety, welfare, and morals of its people.  The police power authority of states have expanded over time such that few would contest that they lack the authority to do things such as regulate workplaces, including setting minimum wages.

Expansion of what is considered legitimate state functions in an era of home rule that what is considered a legitimate municipal function too has grown.  There is no reason to think that cities cannot legislate to protect the welfare of its citizens.  This is a legitimate municipal function and that is the that ought to be extended to § 410.07.

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Here’s a tweet from Strib editorial member Patricia Lopez:

MN Supreme Ct. will hear $15 min wage Tuesday: Don’t let one judge distort representative government in Minneapolis https://t.co/az1aPFZQxi

— Patricia Lopez (@StribLopez) August 29, 2016

She refers to an editorial opposing the judge’s decision to order the question on the ballot for voters. (The editorial discusses a Court of Appeals appeal, but the case went directly to the Supreme Court.) In the editorial, an earlier one is referred to, going on record against the $15 minimum wage, however adopted.

It is funny — to me, anyway — that the same “judicial lawlessness” argument is being marshalled in exactly the same way as it was in urging the marriage amendment a few years ago. It just depends, entirely, on whose ox is being gored.

The referendum is a “larger issue” than the minimum wage itself, opines the Strib. I can’t let that pass without observing that somebody who gets ink at the Strib sometimes, Katherine Kersten, cannot herself let a piece end without referring to “larger issues” somewhere. It’s her favorite way of taking some little incident or trifling affront and blowing it up into a civilization ender.

And that’s what the Strib does here.

What the last issue that the City Mums and Dads worked so hard on keeping away from the voters? Hmmmmmmmm. Hint: the Vikings played in it for the first time yesterday.

I assume you do see a pattern. I mean, democracy is fine unless it might hit a little close to home for the moneyed classes who really run Minneapolis. There is irony, I submit, if the same voters who couldn’t vote on the stadium vote to make the owners pay a decent wage to the people working in it.

Some might even call it justice.

I don’t know if the referendum would pass. Maybe it would, and people would wind up sorry they did it. But cloaking the referendum as just a disrespecting of republican government rings a little hollow for me.

Steve